Unfair dismissal

One of the central topics in Swiss employment law is unfair dismissal. In Switzerland, dismissals must meet strict conditions, and any violation of these conditions can lead to a classification of unfair dismissal. This is characterized by circumstances where good faith does not permit the termination of the employment contract. 

Swiss legislation establishes a delicate balance between the protection of employees and the flexibility granted to employers. However, the precise definition of what constitutes unfair dismissal can be complex, and Swiss courts regularly examine individual cases to clarify the principles at play.

Conditions of an unfair dismissal

The concept of unfair dismissal in Switzerland is multifaceted and is based primarily on Article 336 of the Code of Obligations.

Unfair dismissal due to discrimination

Discrimination in dismissal is a major concern in Swiss labor law. A dismissal is deemed unfair if it is motivated by discrimination, which can take various forms.

For example, gender-based discrimination can manifest as dismissing an employee because of her pregnancy, which would constitute blatant discrimination and is specifically protected by Swiss law. Discrimination can also be based on an employee’s race or ethnic origin, particularly when dismissal decisions are made based on prejudices or stereotypes related to the race or ethnic origin of the employee.

Age is another area where discrimination can occur, for example, if an older employee is dismissed simply because of their age rather than their ability to perform their job. In Switzerland, discrimination based on religion is also prohibited, as the Constitution protects freedom of belief and conscience. Therefore, dismissing an employee because of their religious beliefs or practices would be considered discriminatory.

Additionally, in Switzerland, workers’ rights to unionize and participate in union activities are protected. Thus, dismissing an employee because of their union affiliation or participation in a union would be considered discriminatory and unfair.

Unfair dismissal due to the exercise of a constitutional right

A dismissal can be deemed unfair if it is pronounced due to the lawful exercise of an employee’s constitutional rights. In Switzerland, the exercise of these rights is protected and cannot generally be used as grounds for dismissal. These rights include freedom of expression, freedom of assembly, freedom of religion, and other fundamental rights. However, this protection is not absolute, as a dismissal can be justified if the exercise of these rights violates the law, disrupts the workplace, or conflicts with the employee’s obligations.

Unfair dismissal due to timing

The timing of the dismissal can also be a determining factor in its unfair character. Dismissing an employee during a period of vulnerability may be considered unfair, and certain situations require particular attention.

For example, dismissing an employee during a long-term illness can be problematic, especially if the employee depends on their job for access to health-related benefits. Swiss legislation provides specific protections concerning when a dismissal can occur in such situations, ensuring that the employee is not unjustly deprived of support during a critical period.

Mandatory military service in Switzerland is another period during which dismissing an employee can be considered unfair, as it is a legal obligation for many Swiss citizens. Therefore, dismissing an employee because of this obligation would be manifestly unfair and contrary to fairness principles in employment.

Dismissal after an accident, especially if it is work-related, is also a sensitive area. The assessment of the situation must take into account the nature of the accident, the possibility of reassignment or adaptation of the position, as well as the expected duration of incapacity.

Unfair dismissal for personal reasons

A dismissal may be considered unfair if it is based on personal reasons unrelated to the employee’s ability to perform their job or the needs of the business. This can include personal disputes unrelated to work, disagreements with management or colleagues on non-professional issues, or other personal factors.

However, it is essential to recognize that employers generally have the right to terminate an employment contract for various reasons. When these reasons are purely personal and do not affect the employee’s ability to perform their job or negatively impact the business, the dismissal may be deemed unfair.

Consequences and recourse for unfair dismissal

The consequences of unfair dismissal in Switzerland are significant for both the employer and the employee. In the event of unfair dismissal, the employer may be required to pay compensation to the employee, in accordance with Article 336a of the Code of Obligations. This compensation can represent up to six months’ salary, depending on various factors such as the duration of the employment contract, the fault of the employer, and the circumstances of the dismissal.

For the employee, apart from financial compensation, specific remedies are available in case of unfair dismissal. It is crucial for the employee to act promptly, as there is a 30-day period after notification of the dismissal to contest the decision. The employee can seek to engage in mediation or conciliation with the employer, or take the matter to court for redress. This process can be complex, often requiring the assistance of a lawyer specialized in labor law.

It is important to note that Swiss law does not generally provide for the reinstatement of the employee. In other words, even in cases of unfair dismissal, the employee generally does not have the right to be rehired. This contrasts with labor law regimes in other countries, highlighting the importance of financial compensation as the primary remedy for the employee.